Guest Post: Great power v small state: some parallels between the Arctic Sunrise case (Netherlands v Russia) and Philippines v China

Wim Muller is an Associate Fellow with the International Law Programme at Chatham House. He recently defended his doctoral thesis on China and international law at the European University Institute in Florence. All views expressed in this post are personal.

Yesterday, it was announced that Russia is rejecting the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) in the Arctic Sunrise case, initiated against it by the Netherlands after the Russian authorities detained the Greenpeace ship and its crew during a protest against oil drilling in the Kara Sea. This case has garnered a lot of attention, especially in the Netherlands and Russia, where it is part of a series of issues unhappily coinciding with the official celebration of Russian-Dutch relations, including vocal protests by Dutch nationals against laws restricting gay rights in Russia, the brief forceful arrest of an allegedly drunk Russian diplomat by police in his home in The Hague two weeks ago, and an attack by unknown intruders on his Dutch counterpart in his Moscow apartment two weeks later.

This modest contribution only aims to shed some light on several legal and legal-political aspects of the case by offering a brief analysis of the arguments used by the Russian Federation against ITLOS jurisdiction and its procedural consequences. In particular, I’d like to draw attention to a parallel between Russian behaviour in the Arctic Sunrise case and the Chinese attitude in the ITLOS arbitration initiated against it by the Philippines earlier this year. Both states may be following a path first set out almost thirty years ago by the United States, which is hampering the effectiveness of international judicial institutions to this day.

Russian objections to jurisdiction

According to a statement (in Russian, Google translation here) on the Russian foreign ministry website, Russia does not accept the jurisdiction of ITLOS in this case due to the reservation it made upon ratification of the United Nations Convention on the Law of the Sea (UNCLOS) in 1997, which excludes ITLOS jurisdiction in cases involving the implementation of sovereign rights and jurisdiction. It appears that this refers specifically to the part of the reservation which concerns

disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction […].

According to Russia, this is the case here as the activities by the Greenpeace activists violated Russian law on the exclusive economic zone and the continental shelf and have led to criminal investigations. (The original charges for piracy were dropped yesterday in favour of a hooliganism charge.) In its request for provisional measures, this rather broad assertion of jurisdiction by the Russian authorities is cited as one reason by the Dutch government to initiate the proceedings in question.

In an earlier statement of claim directed at the Russian government and annexed to the request, the Dutch government pre-emptively stated (at para. 13) that the jurisdiction of the arbitral tribunal is not affected by the Russian declaration, claiming that its reach is limited to the subject matter of the section of UNCLOS under which the provision applies. In the Dutch view, this is limited to marine scientific research and fisheries and cannot apply to other disputes, which would be in contravention of Article 309 UNCLOS, a provision invoked by both parties to assert that reservations and declarations can be made which are not expressly permitted by the Convention.

Parallels with Philippines v China

Disagreement about whether an international judicial institution has jurisdiction is the rule rather than the exception; most inter-state cases go through a jurisdictional phase before arriving at the merits. However, normally it is up to the judicial institution in question to establish whether the arguments made are valid and if it does indeed have jurisdiction. This is not happening in the Arctic Sunrise case. In addition to announcing that it does not accept the jurisdiction of the arbitral panel, Russia also stated that it will not participate in any of the proceedings and remains open to other means of settling the dispute. In a legal context, one would expect the state party to respect the authority of the institution in question by allowing it to reach a decision first and then to abide by it.

In this respect, Russia’s behaviour runs parallel to the attitude taken by China when the Philippines filed an UNCLOS arbitration case against it in January over the countries’ competing territorial claims about the Nansha or Spratly islands, which are located in the South China Sea and claimed by both states. On 19 February 2013, China notified the Philippines that it “rejects and returns the Philippines’ Notification and Statement of Claim”. In the view of the Chinese government, “[t]he note and related notice not only violate the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC) [a common declaration by the ASEAN states and China in which they resolve to settle disputes through ‘consultation and dialogue’ – WM] , but are also factually flawed and contain false accusations.” Its spokesman also reiterated China’s commitment to addressing the dispute through bilateral talks. Despite China’s rejection of the arbitration, the arbitration proceedings have moved forward, with the appointment of more arbitrators in March and April. The Chinese government has continued to insist that the arbitral tribunal would not have jurisdiction as the dispute between China and the Philippines is about territory, while the UNCLOS procedures have to do with the law of the sea.

The provisions of Annex VII to UNCLOS allow arbitration proceedings to go forward upon the request of the initiating party, as has happened in the case of the Philippines. It can be expected that the Dutch case will also proceed without Russian cooperation and participation. In both cases, the tribunals will have to satisfy themselves that they have jurisdiction and that the claim is well founded in fact and law. The lack of participation of one party does however cast doubt on the relevance of the outcome of the proceedings.

Non-participation as a great power prerogative

In a typically tendentious post on Opinio Juris, Julian Ku (who has earlier bloggedextensively on the Philippines-China case) also notes the parallel in behaviour between Russia and China and suggests that China may have “started a trend”, especially since Russia has been participating in UNCLOS proceedings in the past. Ku may have identified the beginning of this “trend” almost 30 years too late and be mistaken on who initiated it. Although Russia may well feel strengthened by the Chinese attitude in the Philippines case, its attitude with regard to other international institutions, such as the European Court of Human Rights, has also been problematic in sensitive cases (although the picture is more nuanced than it is sometimes presented). At the same time, both countries’ attitudes can also be seen as typical great power behaviour, as both P5 states may be following an example set by a fellow permanent member of the Security Council in 1985, when the United States walked out of the proceedings in the Nicaragua case following its unsuccessful challenge to the ICJ’s jurisdiction. Although the United States did participate in the hearings on preliminary objections, a difference with the current cases is that in the UNCLOS context decisions on jurisdictional arguments are usually rendered together with the merits. Arguably, walking away in the midst of proceedings is even more damaging than not participating to begin with.

Non-participation in judicial proceedings, even if a state previously consented to a tribunal’s jurisdiction, may well be the prerogative of powerful states in cases in which they feel they have more to lose than to gain from participation. (An example of non-participation which I consider irrelevant here is that of Israel in the advisory case on the legal consequences of the Wallcase, since the case was not an adversarial one and Israel had never consented to anything to begin with.) Both with regard to Russia and China, a historical legacy of distrust of the international system, which is perceived to be rigged in favour of the West, is often cited as at least a partial explanation. The Nicaragua case should put the lie to that argument, since although the United States set a bad example for powerful states to follow, it also showed that the leading Western power was not immune to an adverse judgment by an international judicial institution. The challenge therefore remains to convince governments that it is in their interest, not only in the long term (as no state remains powerful forever) but also in the short term to participate to strengthen that elusive notion of the international rule of law.

The “international system” is indeed biased in favour of the West on many things, but obviously it’s not absolute, so occasionally the US gets criticised too, but it should be noted that this only happens very rarely. For instance, many African leaders are considered to be “war criminals” by international law, the majority of “Oriental” leaders are considered informally to be “dictators” if not officially condemned like the African leaders, yet these are rarely ever applied to Western leaders like Bush, who arguably could also be tried as a “war criminal” in principle.

Brilliant article, but needs a slight point of correction. Article 309 of UNCLOS does not permit Reservation. Article 310 does permit a state to make a Declaration or Statement at the time of signature, ratification or accession to UNCLOS. Therefore, the statement above that ‘Russia does not accept the jurisdiction of ITLOS in this case due to the ‘reservation’ it made upon ratification of the UNCLOS, is not accurate. It should be the ‘declaration’ it made upon ratification of UNCLOS.